Hi all,
My mother in law is in end stage dementia I believe. She is in assisted living and we have enough money to keep her there for several more months. She has a house which was bought by her 3 kids for 1.00. We want to sell the house to pay for her care. The problem is my husbands siblings want to put the house back in their mom's name so they don't have to pay any captial gains taxes. Does this make any sense? The elder attorney my husband spoke to said that is the last thing we want to do??
We are at our wits end with this house..
Also, if we can ever apply for Medicaid, if there are any penalites and we don't have the money, are they putting liens on our houses??
Thanks for any help
They got a step-up basis when the house was sold to them, yes?
Did y'all consult an eldercare attorney BEFORE mom sold the house?
Have all the siblings listen to the eldercare attorney to work out the best solution.
Medicaid won't lien your home, but they will refuse to pay for care. So either the siblings all pay, or she goes into one of your homes to be cared for around the clock.
Is everyone prepared to do incontinence care several times a day?
I think the best thing you can do is summarize the transactions, step-up values, and get legal counsel. The situation that's been created is not something that should be dealt with on a forum. There are two many complications already.
If the house was recently "purchased" for $1.00 (with no other zeros and no commas in the number) it should have been "purchased" for FAIR MARKET VALUE. My thought is that all the siblings would have to pay into moms account the actual fair market value of the house/property.
I would follow the advice of an attorney over a group of siblings that think they know better
Keep in mind Mil will be actually residing in a facility at the time of the filing of the LTC application. So every day she is adding to a bill.
so if house has $345,678 value and your state Medicaid pays a facility $180 a day room&board reimbursement…… that’s 1,920 days of ineligibility. Basically 5 years and 3 months of ineligibility on Mil who (again I mention this) is in a NH. If she’s there 4 months before LTC Medicaid gives the determination she will have a 4 month private pay rate bill for those months. $$$$
NH will seek repayment from whomever in the family they can and nH has attorney’s who do nothing but this and will attach & enjoin all of y’all in repayment. POA has a fiduciary duty to have sought FMV on house sale. All have to some degree to have taken advantage of a vulnerable adult & that has legal ramifications. All this nonsense worry on capital gains will be but a blimp compared to the fallout a NH set in motion on family who will not pay a existing bill. The NH will contact APS; which in turn will seek an emergency ward of the state placement; judge will appoint one from a State list of vetted guardians; and that guardian will go after any family involved in the financial shenanigans. If any of y’all are military or teachers or other banking or licensed professionals, having APS do an investigation on your taking advantage of a vulnerable adult, usually means you get suspended from job or worse. If your military, this goes very bad very fast.
If hubs is the POA for his mom, he is #1 on the list on all this.
So what room will you be clearing out to have your MIL move into?
When did Mom-in-law sell her house? If it was over 5 years ago, then the house wouldn't even be on Medicaid's radar.
Sounds like the siblings would need to sell the house to help pay for Mom's care, and bite the bullet regarding Capital Gains Tax. Are any of the siblings living the house? Was it a rental? If none of the siblings were living in the house, then the house would be classified as an "investment property", thus Capital Gain Taxes would be even higher.
Check with an Elder Law Attorney in Mom's State as State laws can vary from State to State.
thank you so much for all your replies so far, really appreciate it.
If she is still in AL and not a NH, that imies that she doesn't have any major health issues.
A friend's mom recently passed at 102. She had severe dementia, but nothing PHYSICALLY wrong with her. The body can hold on for a very long time.
Www.nelf.org
You have two possible problems here, Medicaid look back and/or capital gains taxes.
As stated already, if the transfer was done more than five years ago, it won’t be an issue on the lookback. This seems likely to be the case here since the lawyer said not to transfer it back. Some states use a shorter lookback for real estate.
The strategy when the transfer was done was to get through the lookback and count on Medicaid if she needs LTC after that. Most assisted living isn’t covered by Medicaid so a move to a Medicaid facility would be needed, likely a shared room in a skilled nursing facility.
Capital gains taxes, mostly 15%, are due when you make a profit on selling a home or other asset. Basically selling price minus expenses minus “basis” equals profit.
You have three likely areas of concern here, depreciation recapture, the step up in basis, and the capital gains tax exclusion.
If you haven’t rented out the home, depreciation recapture isn’t a problem.
If you inherit a home, you get a step up in basis to its current value, so if you sell it right away there is no capital gains tax. You got the house from Mom while she is alive, so no step up in basis for you. Your likely basis was basically Mom’s basis (purchase price plus improvements) plus any improvements you have done.
If you have owned a house for at least five years, and lived in it for at least two, you can keep up to $250,000 in profit without federal tax. If Mom had sold it, she might have done this; she didn’t. Renting it complicates things.
Additional capital gains taxes may be due to your state.
Note, If she is near the end, her medical POA needs to review her preferences and prepare to act accordingly. Assume you are all doing your best and be kind to each other.